Supreme Court Rules For Thousands Deported: State Felony Drug Possession
Offense That Would Be Classified As A Misdemeanor Under Federal Law Is Not An "Aggravated Felony"

On December 5, 2006, the Supreme Court in Lopez v. Gonzales[1] ruled that a simple drug
possession offense that is classified as a felony under state law but a misdemeanor under
federal law cannot be a felony punishable under the Controlled Substances Act (CSA)
and thus is not an aggravated felony under the immigration laws. "Unless a state offense
is punishable as a federal felony it does not count." Reversing the U.S. Court of Appeals
for the Eighth Circuit, the Supreme Court found in Lopez's favor, dismissing an
aggravated felony charge and affording him the opportunity to apply for discretionary
cancellation of removal. In so doing, the Supreme Court effectively concluded that
thousands of non-citizens have been deported in error and that the Government may no
longer characterize certain offenses as aggravated felonies without compelling
justification in the law. The procedural history and facts of the case are briefly set out
below, as is the Supreme Court's holding and its implications for foreign nationals.

In September 1997, Jose Antonio Lopez, a lawful permanent resident of the United
States, was convicted in South Dakota of aiding and abetting another person's possession
of cocaine, a felony under the state's drug laws. He pleaded guilty and was sentenced to
five years' imprisonment, but was released for good conduct after 15 months. Federal
immigration authorities then placed Lopez in deportation proceedings, charging him with
a controlled substance violation as well as with having committed an "aggravated
felony." The latter charge has particularly harsh consequences under the immigration
laws and, if sustained, renders a non-citizen ineligible for various forms of discretionary
relief from deportation, including cancellation of removal and asylum. Lopez challenged
the aggravated felony charge in immigration court, arguing that although his offense was
a felony under South Dakota law, it would only be punishable as a misdemeanor under
federal law. Thus, he maintained, the offense did not qualify under the relevant statute as
"illicit trafficking in a controlled substance . . . including a drug trafficking crime (as
defined in section 924(c) of Title 18)," where a federal "drug trafficking crime" is
defined as "any felony punishable under the Controlled Substances Act ("CSA")."[2]

An immigration judge initially agreed with Lopez's argument, ruling that because the
conduct proscribed under his state conviction was not a felony under the CSA, his
offense did not qualify as an aggravated felony. However, after the Board of
Immigration Appeals ("BIA") switched its position on the issue, the same immigration
judge ruled that Lopez's simple possession crime was an aggravated felony after all,
owing to its designation as a felony under state law. Finding Lopez ineligible for
cancellation of removal as an aggravated felon, the immigration judge ordered him
deported. The BIA affirmed, and the Eighth Circuit upheld the BIA's decision.[3] Lopez
then appealed to the U.S. Supreme Court.

Writing for an 8 to 1 majority,[4] Justice David Souter found the Government's argument
to be "incoherent with any common-sense conception of ‘illicit trafficking.'"
Specifically, the Court rejected the Government's contention that simple drug
possession's "felonious character as a state crime is enough to turn it into an aggravated
felony" even though the equivalent federal offense would be punishable only as a
misdemeanor. The Government had insisted that although the CSA classifies possession
as a misdemeanor, the "felony element" was met for "aggravated felony purposes" in
Lopez's case, because the state of South Dakota punishes simple drug possession as a
felony. The Supreme Court found, to the contrary, that conduct which is classified as a
felony under state law but as a misdemeanor under federal law cannot be a "felony
punishable under the Controlled Substances Act." Lopez's simple drug possession
offense, therefore, is not an aggravated felony under the immigration laws. "Unless a
state offense is punishable as a federal felony it does not count."

The Supreme Court's near-unanimous opinion is significant for a number of reasons, not
least because in the complex and somewhat esoteric realm of U.S. immigration law, the
Court emphasized the importance of looking to the "everyday meaning" and "regular
usage" of terms not explicitly defined by statute. Hence, the term "illicit trafficking,"
which "ordinarily connotes some sort of commercial dealing," cannot be unreasonably
expanded to include simple possession crimes. As the Court declared, "[c]ommerce . . .
was no part of Lopez's South Dakota offense of helping someone else to possess, and
certainly it is no element of simple possession." The Government's contrary position
"would often turn simple possession into trafficking, just what the English language tells
us not to expect." According to the Court, for such a tortured reading to prevail would
require "some indication that Congress meant to define an aggravated felony of illicit
trafficking in an unorthodox and unexpected way." However, no such indication is
discernible in the statute: "[t]he Government's argument to the contrary contravenes
normal ways of speaking and writing," which reveal that "felony punishable under the . .
. Act" means felonies punishable as such or defined by the CSA, but does not refer to
state felonies. In essence, the Court held that because federal law classifies virtually all
simple possession offenses as misdemeanors, without reference to the quantity of drugs
involved, the Government may no longer deem a state felony possession offense to be an
aggravated felony unless it would also be a felony under federal law.

Accordingly, after Lopez, first-time simple drug possession offenses are no longer
aggravated felonies for immigration purposes, even if classified as felonies by the state in
which they were committed. The only exceptions to this rule occur where a state offense
"corresponds" to the analogous federal crime – for example, possession of more than five
grams of crack cocaine or possession of flunitrazepam, both of which are punishable as
felonies under the CSA. In addition, a second or subsequent drug possession offense
could qualify as an aggravated felony, where the particular state offense corresponds to
the federal "rescidivism possession" felony.[5] To conclude otherwise, the Court observed,
would make the law of alien removal and of sentencing for illegal reentry variable
depending on state criminal classifications. "We cannot imagine that Congress took the
trouble to incorporate its own statutory scheme of felonies and misdemeanors [in the
INA] if it meant courts to ignore it whenever a State chose to punish a given act more
heavily."

The Supreme Court's opinion has dramatic implications for foreign nationals who have
been charged with or convicted of certain crimes. Previously, a simple drug possession
conviction in a jurisdiction that punishes the offense as a felony would have resulted in
an aggravated felony charge, foreclosing eligibility for various forms of relief from
deportation. After Lopez, however, an offender who is a lawful permanent resident might
no longer be barred from such discretionary forms of relief as cancellation of removal
and termination of proceedings to pursue naturalization. Moreover, an individual who
fears persecution in her homeland might no longer be ineligible for asylum or
withholding of removal. As a consequence of the Court's decision, in many cases
reopening of removal proceedings or the introduction of new arguments on appeal will be
appropriate and should be pursued.

About The Author

Thomas Ragland is a Senior Attorney with Maggio & Kattar, P.C. He is an experienced immigration litigator, having successfully represented individuals in all aspects of immigration law before the immigration courts and the Board of Immigration Appeals, as well as in the federal district and circuit courts of appeals. He specializes in the immigration consequences of criminal convictions, waivers of inadmissibility, asylum, adjustment of status and naturalization, detention and bond issues, and deportation defense.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.